The Seventh Circuit Court of Appeals has upheld the dismissal of a tenured school guidance counselor's lawsuit who was fired after writing a sexually explicit book entitled It's Her Fault. While upholding the counselor's firiring in Craig v. Rich Twp. High Sch. Dist. 227, 13-1398, 2013 WL 6235856 (7th Cir. Dec. 3, 2013), the appellate court reversed the district court's finding that the book was not a matter of public concern. The case presents some tension, however, in deciding when an employee can be discharged for private sexual expression that would otherwise be protected by the First Amendment. Bryan Craig, a counselor and women's basketball coach at Rich Central High School in suburban Chicago, self-published It's Her Fault, an adult relationship advice book in 2012. Commenting on the book's subject, the 7th Circuit noted that "when we say “adult,” we mean it in every sense of the word—in his book, Craig repeatedly discusses sexually provocative themes and uses sexually explicit terminology." (A brief look at It's Her Fault's Amazon reviews generally supports that assessment.) In the book's introduction, Craig said that he was qualified to give women relationship advice because he coached girls basketball, worked "in an office where I am the only male counselor, and [was] responsible for roughly 425 high school students a year, about half of whom are females.” Craig also thanked his students in the acknowledgements and had another Rich Central write the book's foreword. In September 2012, the Richman Township High School District found out about the book and discharged Craig on three grounds: (1) that the book “caused disruption, concern, distrust and confusion among members of the School District community;” (2) Craig violated the policy “prohibit [ing] conduct that creates ‘an intimidating, hostile, or offensive educational environment;” and (3) that “Craig failed to present [himself as] a positive role model and failed to properly comport himself in accordance with his professional obligations as a public teacher.” Craig sued the school district under 42 U.S.C. § 1983 alleging retaliation against him for engaging in protected speech. The Northern District of Illinois dismissed Craig's suit for failure to state a claim because It's Her Fault did not address a matter of public concern and thus was not entitled to First Amendment protection. Read more after the jump.

The district court based its finding on City of San Diego v. Roe, in which the Supreme Court held that a police officer's creation of sexually explicit videos while wearing a police uniform did not relate to a matter of public concern. In Craig, the 7th Circuit disagreed with the lower court, stating that the the “matter of public concern” inquiry under Connick v. Myers requires the speech "need only address a 'matter[ ] in which the public might be interested' in order to be eligible for First Amendment protection." Because It's Her Fault discussed "adult relationship dynamics," the appellate court found that it was "a subject that interests a significant segment of the public" and thus was of public concern. Having found that the speech implicated a matter of public concern, the 7th Circuit turned whether the school district's interests in restricting Craig's speech outweighed his First Amendment speech rights. Using the Supreme Court's Connick-Pickering balancing test, the circuit court found found that Craig's linking his expertise to his work as a school counselor and coach intertwined the expression to his employment. The school district's interest in the integrity of Craig's work as a guidance counselor and its prediction that It's Her Fault "would interfere with the learning environment at Rich Central," outweighed Craig's First Amendment rights, the court found. As examples of possible interference, the court noted that female students who knew about Craig's views in the book--that women tend to “act based on emotion alone instead of emotion plus intellect” and women should be sexually submissive--would be reluctant to seek his career, college, or relationship advice.